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Access to justice can be impeded by cost of court transcripts, judge says

Government urged to look at offsetting costs in ‘meritorious cases’

There is a Canada-wide effort under way “within all levels of government and at all levels of court” to ensure the justice system is accessible, and a key concern is the cost of litigation, said Justice Catherine Bruce.

Photograph by: Bruno Vincent
, Getty Images

The B.C. Supreme Court has urged Victoria to look at court transcript costs as a way of relieving some access-to-justice concerns for the needy.

It sounds like an odd barrier, but Justice Catherine Bruce called the expense an area the provincial government could address “as a means of precluding a denial of justice to persons with meritorious cases.”

Although she rejected a constitutional challenge to the Supreme Court rule that requires an appellant to provide a transcript of the Provincial Court proceeding, Justice Bruce said the application raised “complicated and serious questions about the adequacy of the government’s actions to ensure access to justice for all persons regardless of their economic status.”

She noted there was a Canada-wide effort underway “within all levels of government and at all levels of court” to ensure the justice system was accessible, and a key concern is the cost of litigation.

“I urge the government to investigate ways in which the cost of appeal transcripts could be offset where the circumstances warrant such extraordinary measures,” Justice Bruce said.

In this small claims case, a disabled woman who lives on a pension found herself in a Catch-22 — she was declared indigent and exempt from hearing fees to proceed with her appeal, but stymied because she couldn’t pay for the necessary transcripts.

Caroline Allart argued the requirement imposed a total barrier to the courts and blocked her access to justice.

She was fighting over a $4,291.91 engine rebuild on her pickup truck camper, which is also her home.

But Justice Bruce said it wasn’t clear Allart had exhausted all avenues for paying the transcription fees, such as applying to the court for interim or advance costs.

She concluded that “before a constitutional challenge of this nature is embarked upon, the court should be satisfied that there are no other means to obtain transcripts. Because this is a private lawsuit, the preference is that the parties bear the costs of litigation.”

Allart’s lawyer said the other means of paying for transcripts were extreme long shots.

“A disappointing outcome for us,” said Jamie Maclaren, executive director of the Access Pro Bono Society of B.C., which represents the needy.

“There was some empathy (in the ruling) and some encouragement to the provincial government to address the issue — we had hoped for more. Although (the 80-minute transcription and reproduction fees) were only about $750, Allart would have to forsake certain basic living expenses. But that wasn’t enough for Justice Bruce.”

He said Access Pro Bono agreed to represent Allart in the constitutional application because of her indigent status but she did not qualify to have her transcript expenses covered by the society, which was also suggested by the judge.

Maclaren explained that transcript costs were a growing problem, especially for a disproportionate number of disadvantaged women such as Allart. At the appeal court level, he said, the expense was often “upwards of $12,000.”

“We see very meritorious cases quite frequently … dozens (a year) that are abandoned,” he lamented. “It’s a very vexing issue for us.”

Although the court previously declared certain government-imposed hearing fees unconstitutional because they hindered access to justice (a ruling now before the Supreme Court of Canada), Maclaren said there was a wrinkle in this situation because transcription services were privatized decades ago.

Victoria contracted out the preparation of transcripts to J.C. Word Assist Ltd. in 1988.

“The difference is the hearing fees are imposed by the government, but the transcription services were outsourced to private providers and is a wholly privatized service that is outside of government,” he explained.

There is a Canada-wide effort under way “within all levels of government and at all levels of court” to ensure the justice system is accessible, and a key concern is the cost of litigation, said Justice Catherine Bruce.

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